Under the Americans with Disabilities Act, which discussions about a job candidate’s disability with prospective employers are unacceptable? Which are acceptable?
High school is the time for your youngster with cerebral palsy (CP) to start understanding the basic provisions of the Americans with Disabilities Act of 1990 and which job interview questions can and cannot be asked under the provisions of that law.
Here’s a quick set of unfair, questionable and fair job interview questions, based on Equal Employment Opportunity Commission (EEOC) guidelines, which enforces provisions of the Americans with Disabilities Act.
Help your youngster understand these indicators now so he or she will be to quickly determine whether an interview experience is on the up-and-up or dipping below the fairness (and illegal) level under the Americans with Disabilities Act.
Under Title I of the Americans with Disabilities Act, your future job seeker can't be asked about the existence, nature, or severity of a disability. It prohibits questions about medical conditions; past hospitalizations; nature and severity of a disability such as CP; and other related matters on job applications and in job interviews.
By the way, the Americans with Disabilities Act does not require employers to give your son or daughter a hiring preference just because he or she has a disability.
But, the law prohibits an employer from refusing to hire or promote or from taking other adverse action against a person because of the person’s disability, if he or she can perform the essential functions of the job. The law applies to private employers with 15 or more employees and to state and local government employers.
However, an employer can, under the law, choose a person without a disability with more experience over an individual with a disability, even if the individual with the disability is qualified for the job.
An employer can choose a person without a disability over an individual with a disability, if the two individuals are equally qualified, as long as the choice is not made because of the individual’s disability.
The Americans with Disabilities Act prohibits employers from asking questions that are likely to reveal the existence of a disability before making a job offer (the pre-offer period). This prohibition covers written questionnaires and inquiries made during interviews as well as medical examinations. However, such questions and medical examinations are permitted after extending a job offer but before the individual begins work (the post-offer period).
Employers may ask an applicant these questions after making a job offer as long as they ask the same questions of other applicants offered the same type of job. In other words, an employer cannot ask such questions only of those who have obvious disabilities. Similarly, an employer may require a medical examination after making a job offer as long as it requires the same medical examination of other applicants offered the same type of job.
An employer may tell all applicants what the hiring process involves (for example, an interview, timed written test, or job demonstration), and then ask whether they will need a reasonable accommodation for this process.
If the employer believes an applicant with an obvious disability will need a reasonable accommodation to do the job, it may ask the applicant to describe or demonstrate how she would perform the job with or without reasonable accommodation.
Here’s a fair question employers can ask during a job interview under provisions of the Americans with Disabilities Act:
Employers may ask your future job seeker whether he or she can perform the job-related functions as long as they don’t phrase the questions in terms of disability.
For example, if driving a vehicle is a function of the job, the employer may ask if your youngster has a driver’s license. However, the employer may not ask if having CP prevents your son or daughter from driving.
Under the Americans with Disabilities Act, potential employers cannot ask certain questions at a job interview that would result in the applicant revealing information about the existence or nature of a disability.
Questions about gaps in employment history are likely to lead to information about an applicant’s disability and are, therefore, arguably illegal. However, until the courts and EEOC clarify the issue, the law on this question is unsettled.
Unfortunately, some employers persist in asking questions that are prohibited under the Americans with Disabilities Act. This places job applicants in the uncomfortable position of deciding how to respond.
My advice that you can pass along to your youngster: If you choose not to discuss your CP during the job interview, try to determine what type of information an employer is seeking through her line of questioning.
For example, an interviewer may ask:
“What is your usual schedule on a typical work day?” You may deduce that she
wants to know if your son or daughter would be missing work due to personal
care issues, transportation problems etc. Here’s a simple reply: “I’ll have no
problem meeting the position's attendance requirements.”
If your youngster’s main goal is to pursue the job, then I’d recommend refusing to answer a question in a non-confrontational manner. For instance, “I’ve read about a law that prohibits questions of this type during job interviews.” This allows your future job seeker to avoid answering the question without giving the employer the impression that he or she has a disability, if your youngster chooses not to disclose because CP isn’t obvious.
If your youngster’s main goal is to get the employer to change an illegal
interview process under the Americans with Disabilities Act, then filing a
complaint with the EEOC or state or local human rights agency is in order. Ask
the agency to take up the problem of the illegal question with the employer.